Miller v. Staton

Mallery, J.

(dissenting) — I agree that the cases relied upon in the majority opinion are apropos and correctly state the Washington rule of law. However, I think the majority opinion does not correctly construe either the cases cited or the facts in this case.

As to the law, the majority opinion states:

“The general rule followed by this court is that an innkeeper or restaurant owner owes the duty to his guests to exercise reasonable care to protect them from injury at the hands of a fellow guest. Gurren v. Casperson, 147 Wash. 257 , 265 Pac. 472 (1928); Peck v. Gerber, 154 Ore. 126 , 59 P. (2d) 675 , 106 A. L. R. 996 (1936); Thomas v. Bruza, 151 Cal. App. (2d) 150, 311 P. (2d) 128 (1957).”

This statement of the rule is incorrect because it is incomplete and therefore misleading. The cited cases include the specific qualification that the duty arises after the tavern keeper has notice of the peril confronting the guest and at a time when he has an opportunity to protect him. To omit these elements changes the liability of tavern keepers from one predicated upon negligence to that of an insurer.

*891 In Gurren v. Casperson, 147 Wash. 257 , 265 Pac. 472 , the only Washington case cited, a woman, who occupied a room in a hotel as a guest, called the hotel clerk and informed him that one Sullivan, who was intoxicated, had entered her room and refused to leave. Hotel employees came immediately and ejected him. The opinion’s recital of the facts in that case then continued:

“ . . . The plaintiff again called the clerk of the hotel and requested that the defendant Sullivan be kept away from her room. A short time thereafter, the plaintiff unlocked her door and started to cross the corridor, when she was assaulted by the defendant Sullivan who struck her, knocked her down, cutting her face, and beating her until she was unconscious. The testimony is conclusive that the plaintiff did not know the defendant Sullivan and had never seen him before the night of the assault.” (Italics mine.)

The court held the hotel liable for the plaintiff’s injuries and predicated the liability upon the following statement of law:

“ . . . Here, we have a guest in a hotel assaulted by another guest, after the landlord had been expressly warned of the possibility of this happening, and after the assaulted guest had demanded from the clerk of the hotel protection against the acts of the wrongdoer.” (Italics mine.)

Thus, the duty of the innkeeper to protect his guests is not that of an insurer, because it is qualified by the requirement that he must have notice of the specific impending peril at a time when he has an opportunity to prevent the injury. Failure to perform this duty under such circumstances then constitutes actionable negligence. This is the rule of the only Washington case cited, and it accords with the universal rule of a tavern keeper’s liability.

Notice of the peril and ability to protect the guest as the prerequisites of a tavern keeper’s duty to protect a guest are based upon the established rules of tort liability.

Mortal man is held to know the natural and probable consequences of his own acts, but he does not have the power of divination and is, therefore, not charged with *892 knowledge of what others may do. Notice of the peril is, therefore, the basis of actionable negligence in failing to prevent a third person’s harm to others. This is because of the universal rule that one has the right to presume that others will obey the law until there is notice to the contrary. The duty to act to prevent injury to another by a third person, when it exists, is predicated upon certain special personal relationships. Thus, a mere bystander is not liable for a battery by a third person even when he has an opportunity to prevent it.

Obviously, the duty to protect a guest can be fulfilled only by taking appropriate measures against a particular person at a particular time when a known peril exists. By the nature of things, the duty to protect must, therefore, be brought into existence by knowledge of the peril at a time when there is an opportunity to perform the duty. Only insurers have liability for third party torts in the absence of knowledge of peril and an opportunity to safeguard against it. Gurren v. Casperson, supra, declares the law in this state, and it specifically exempts tavern keepers from the liability of insurers.

The next case relied upon by the majority is the Oregon case of Peck v. Gerber, 154 Ore. 126 , 59 P. (2d) 675 , 106 A. L. R. 996, in which the plaintiff was injured when a fighter was knocked over and into her. One Gordon was a regular patron of the defendants’ place of business, who frequently sang at the instance of other patrons. He was hotheaded and belligerent when drinking. The specification of negligence in the complaint was the permitting of a person known to the defendants to have violent and disorderly propensities to be admitted and remain upon their premises. The court specifically held that the evidence was sufficient to prove the dangerous propensity and that the defendants had notice of it. The trial court therein instructed the jury as follows:

“ ‘If you find that Gordon Leslie was a person of violent and disorderly propensities, that alone would not make the defendant responsible or liable for the plaintiff’s alleged injuries. Before you can return a verdict against the *893 defendant you must go further and find the violent and disorderly propensities of Leslie Gordon were such as to make him dangerous as to the safety of others and that such propensities were known or should have been known to the defendants. In other words, two things must concur: You must find that Gordon Leslie was such an individual, and also find that such propensities were known or should have been known to the defendants.’ ” (Italics mine.)

Here, again, the right to rely upon the presumption that others will obey the law was overcome by allegations and proof by the plaintiff of notice to the defendants to the contrary. The notice was the basis of the tavern keeper’s duty to eject Gordon from the premises at a time that would have avoided the injury. While this Oregon case does not declare the law in Washington, it does not conflict in any way with the Washington rule that a tavern keeper’s duty is based upon his notice of the guest’s peril and his opportunity to protect him.

In Thomas v. Bruza, 151 Cal. App. (2d) 150, 311 P. (2d) 128 , a California case, which the majority opinion purports to follow, the plaintiff was allowed to amend his complaint in order to state a cause of action. The court therein said:

“. . . No allegation of a negligent supervision of the saloon appears. Neither does the complaint allege that respondent had an opportunity to prevent the battery or that the blow was dealt in the presence of respondent. There is no allegation that the injuries of appellant were the proximate result of respondent’s negligence. Interpreting the complaint liberally, the most that can be reasonably inferred is that respondent sold to Chavez alcoholic beverages knowing him to be quarrelsome and pugnacious when drunk; that Chavez became intoxicated and struck appellant and that the blow caused the latter’s injuries. Such allegations are not enough to state a cause of action against respondent. . . . ” (Italics mine.)

Thus, in California, it appears that “opportunity to prevent the battery” must appear in order for the injury to be the “proximate result of respondent’s negligence.” “Opportunity to prevent the battery” can arise only from notice, not divination, of the imminence of the specific battery. The case is not in conflict with the Washington rule.

*894 After citing and purporting to rely upon the foregoing cases, which negative the tavern keeper being liable as an insurer, the majority opinion proceeds to impose an insurer’s liability upon him. This is made to appear with certainty in the majority opinion’s ruling upon instructions Nos. 11, 14, and 15, which were given by the trial court, and the defendants’ proposed instruction No. K, which was refused.

Instruction No. 11, which the majority opinion approves, states:

“You are instructed that plaintiff had the right to rely upon the belief that defendants or their employees would preserve order and protect the guests from injury.”

Such a liability for the torts of others is, of course, the liability of an insurer, since it is not predicated upon either a proximate cause attributable to the defendants or proof that their duty to protect the plaintiff came into being by reason of notice of peril and opportunity to guard against it.

An insurer’s burden was placed upon the defendants in instruction No. 14 because it imposes a duty without notice. It reads:

“You are instructed that the defendants were charged by law with the duty of preventing disorderly conduct in their place of business. If you find that defendants did not take all the steps necessary to prevent disorder in their place of business, which would have been taken by an ordinarily prudent tavern owner, on the night in question, then your verdict must be for the plaintiffs.”

The court dispensed with notice and emphasized and repeated the insurer’s burden for a third time in instruction No. 15, which reads:

“You are instructed that if a reasonable tavern owner should have expected the possibility of disorderly conduct in defendants’ place- of business on the night in question, defendants were under a duty to employ a reasonably sufficient number of persons so that the premises would be properly policed and afford reasonable protection to the patrons. If you find from the evidence that defendants did not have a reasonably sufficient number of persons em *895 ployed on and policing the premises you shall find them negligent and your verdict must be for the plaintiffs.”

The trial court declined to give the defendant’s proposed instruction No. K, upon proximate cause, which reads:

“You are instructed that the law does not require the defendants to have anticipated that the fight in question would start. If you find the defendants were not negligent in admitting Gelven and Saunders to their establishment, they are negligent only if they or their employees had knowledge of the fight and had a reasonable opportunity to stop it, but failed to do so.”

This requested instruction is a correct statement of the law with regard to the duties of tavern keepers. The majority opinion, in rejecting it, by necessary implication holds that a tavern keeper is an insurer.

This is further made to appear with certainty from the determinative facts in this case, which are: At about 2:00 a.m., Mr. and Mrs. Saunders were preparing to go home from a New Year’s party at the defendants’ tavern. He went to get their coats. Upon his return, he found one Gelven dancing with his wife. In a surge of jealousy, he rushed on the dance floor and started striking Gelven. Bystanders quickly separated the combatants, but not before they had injured plaintiff by knocking her to the floor.

From the first to the last, the plaintiff predicated her cause of action upon the theory that the defendants were insurers of her safety in accord with the instructions which she induced the trial court to give. For this reason, she did not allege or prove that the defendants were negligent in permitting Saunders on the premises because he was a dangerous person, that the defendants had notice of that fact, and that the defendants had an opportunity to protect her. On the contrary, her allegations of negligence were that the defendants failed to provide sufficient policing to prevent the fight. Of course, this is a sufficient allegation only as to an insurer.

The plaintiff, herself, testified:

“Q. Now you say you were sitting there and talking to her when something hit you in the back. Now just tell *896 the jury what you can remember of what transpired before you were hit in the back. A. Well, we was settin’ there talkin’ when all of a sudden she says: ‘Oh, there is — Q. Now who is ‘she’? A. That is Mary Kusler. She was settin’ on my right and says: ‘Oh, there is a fight’ and as she said that, something hit my back.”

It is obvious that the plaintiff in thus negativing the existence of notice of the danger to the defendants or an opportunity to prevent the injury did not contemplate relying upon anything but an insurer’s liability.

The plaintiff’s theory, as exemplified by the trial court’s instructions, was that the defendants’ negligence consisted of not having enough policemen and employees present to effectively prevent anyone and everyone from starting any kind of a disturbance in which anyone would be injured. Her pleading and proof raised no issue of any notice relative to the fighters in particular. In this posture of the pleadings and the evidence, the majority opinion’s position is inexplicable when it asserts that there is a conflict of evidence upon the question of notice of peril and an opportunity to avoid injury, and that there is sufficient evidence to go to the jury upon that nonexistent issue.

A conflict of evidence exists when the parties have framed an issue and produce testimony in support of their opposing positions. The trier of the facts then chooses between them on the basis of credibility of witnesses. The purported conflict referred to in the majority opinion occurs in the testimony of the same witnesses. Discrepancies in the testimony of a witness does not constitute a conflict even when the ultimate statement of fact is in doubt.

The majority opinion’s quotation from the testimony of Edna Reeves is supposed to conflict with her following testimony, which it omitted:

“Q. Well, how long did all of this take place? A. I couldn’t say. . . . Q. You would not venture to say how long the fight lasted? A. No. Q. You don’t know whether it was five minutes or five seconds then? A. No. . . . Q. How long would you say it took you to get *897 from your chair over to where Mrs. Miller was? A. I couldn’t say.”

This unqualified disavowal of testimonial knowledge certainly does not constitute the proof of notice that is necessary.

The majority opinion purports to find an internal conflict in its quotation from the testimony of Mary Kusler with other testimony given by her, which is as follows:

“Q. And you jumped right up as soon as you saw the fight and you started to get out of the way? A. Yes, sir, I did. Q. And just as you got out of the way the table hit the floor? A. Just that fast. Q. It happened very fast? A. Yes it did. . . . Q. You said they really moved fast when you first saw them until they hit the table? A. Well, to me it was a matter of seconds. It might have been a matter of minutes.”

The full import of Mary Kusler’s and Edna Reeves’ testimony in its most favorable light does not constitute a scintilla of proof of notice of the peril to the defendants and an opportunity on their part to protect the plaintiff.

The plaintiff proved that jealousy was the proximate cause of the fight which injured her. Without proof that the fighters were known to be dangerous persons, the only other possibility of defendants’ liability for negligence that could exist would be if the fight continued for such a long time prior to the plaintiff’s injury that notice of the peril was brought home to the defendants, and that they failed to act while they still had an opportunity to protect the plaintiff. She proved that the injury happened very quickly, and she did not plead or attempt to prove any duration of the fight such as would constitute notice of her peril and an opportunity on the part of the defendants to protect her. Of course, the duration of the fight after the injury is irrelevant as any opportunity to prevent the injpry was then past. The majority opinion, sua sponte, gives the plaintiff the benefit of an. issue not. pleaded and for which there is not a scintilla of supporting evidence in the entire record.

*898 I think this court has no right to impose an insurer’s liability upon tavern keepers for the reason that intoxicating liquor has long been held to be subject to the police power, and courts do not formulate public policy in such matters. The legislature, in the absence of an initiative by the people, is the sole authoritative source of such public policy. The legislature in its wisdom created a state liquor board with regulatory and disciplinary powers over taverns. Neither the legislature nor the liquor board has seen fit to require the presence of policemen in taverns, or require any other special provision for policing them. Indeed, thousands of barmaids serve unassisted shifts in the taverns all over the state. This situation is incompatible with any judicial legislation which would impose a special policing obligation to prevent all injury to all people under all circumstances upon tavern keepers.

I think this court should continue to follow the established Washington rule. Upon the filing of the majority opinion with the instructions approved therein, we will stand alone among the states in imposing the liability of an insurer upon tavern keepers.

Moreover, the majority and concurring opinions mar the symmetry of the law of proximate causation by failing to recognize the difference between the liability for negligence and the liability of an insurer. Liability for negligence is predicated upon proximate causation, the liability of an insurer is not. The majority do not take the position that a tavern keeper is an insurer. It is, therefore, forced in order to find proximate causation where none exists to depart from the long established rules upon the subject.

It should be remembered that the tavern keepers did not injure the respondent wife. A fight caused by jealousy was unequivocally proven to be the proximate cause of the injury. The men who did injure her were not made parties defendant in this action. Their relationship to the appellants was merely that of guests, which, of course, does not invoke the rule of respondeat superior against the tavern keepers.

No attempt was made to show a breach of duty on the part of the tavern keepers after notice of the affray was *899 brought home to them at a time when it was possible to discharge their duty to protect the respondent wife against a known and impending danger.

The general conditions prevailing throughout the evening did not produce the harm in question. Even if the law of proximate causation be so far perverted as to attribute the injury to them, still the law of contributory negligence would be a shield, unless it too is destroyed.

No citation is necessary for the elementary rule that every one is charged with, the exercise of ordinary care for his or her own safety and protection. No one is required to foresee a violation of the law by another, and both parties to this action had an equal right to presume, until she or they had notice to the contrary, that others present would obey the law. The burden of foreseeability of danger was, therefore, precisely the same upon the respondent wife, who could have left the party at the first indication that it was dangerous, as it was upon the appellants.

It is anomalous for .a person to deny her own contributory negligence in spending the entire evening drinking at a New Year’s party and then claim to be aggrieved by a tavern keeper’s negligence because the party was exactly what she at all times knew it to be — a typical New Year’s party in a tavern. The imposition of an insurer’s liability in the field of public policy involving the police power constitutes judicial legislation.

The case should be dismissed. I dissent.

Ott and Foster, JJ., concur with Mallery, J.